COVID-19s Exacerbation of the Systemic Issues Facing Disabilities Advocacy

-- By AliJimenez - 22 Feb 2021

Foreword

Before law school, I spent four years teaching 6th-grade math. Over the years teaching in East Harlem, I grew more and more frustrated that my students with disabilities were not getting the services they needed. The specific services (as dictated by 504s and Individualized Education Plans (IEPs)) did not materialize due to what I was told were “budget” or “staffing constraints.” As a result, my students with disabilities were at a higher risk of remaining further behind than their counterparts. As an individual who once benefitted from such services due to my hearing disability, I was frustrated by the added layer of marginalization my students faced. In my own graduate studies program, I spoke with other New York City teachers and realized that the obstacles that my students with disabilities faced were not specific to my own school or network. These issues to special education students remain symptoms of larger systemic issues in American public education. What is even more worrisome now is the impact on students’ overall needs with disabilities amidst COVID-19.

Defining Terms -- Services, Individualized Education Plans, and 504s

Services for students with disabilities can encompass a wide range of types such as consultant teacher services, resource room services, integrated co-teaching services, special class, and related services (psychological, audiology, speech/language therapy, counseling services, mobility service, etc.). Any one student may require one or more of these services. Specialized instruction, in contrast, adapts the content, methodology, or delivery of instruction to address the needs stemming from a students’ disability. Not every student that has a disability will require specialized instruction. For those that do, The Individuals with Disabilities Education Act (IDEA) provides the procedural requirements and provides the process for developing an Individualized Education Plan (IEP). An IEP is a written document that outlines a plan to provide a child with a Free and Appropriate Public Education in the Least Restrictive Environment. The IEP is formed in conjunction with a student’s parent or guardian and a special education teacher and has mandated services and growth goals outlined. A 504, on the other hand, is provided by the Rehabilitation Act and is for students with disabilities that do not require specialized instruction but do need accommodations to assure equal access to public education and services. Under a 504, a document is created to outline accessibility requirements.

COVID-19s Implications on Services for Students with Disabilities

Providing services to students with disabilities has been a difficult process within New York City even before the onset of the pandemic. For instance, staffing issues and budget constraints often led to a lack of materialized services by our network. Since the pandemic, the issues nationwide have only been exacerbated. The switch to virtual learning has created challenges to providing services to students that may require counseling, small group instruction, speech services, occupational therapy, or more. With this said, the pandemic’s onset does not discount the fact that IDEA requires that each student receive free and appropriate education, regardless of whether students are in a classroom environment or learning virtually.

Additionally, the pandemic’s harsh and quick reality led to a sort of acceptance on the part of the United States Department of Education that special education services would be put to the wayside. In March of 2020, the United States Department of Education created legal guidance on COVID-19 specifically related to services for students with disabilities. The guidance stated that schools must “make every effort to provide special education and related services” to students but makes a carve-out that states that there could be potential “exceptional circumstances” that modify how services might come to fruition. While these “exceptional circumstances” are meant to consider the reality of COVID-19 and are meant to maximize safety, this does not detract from the fact that students with disabilities are not receiving the services they need more often than not. Three teachers that I have recently spoken with have stated that “SETTS,” which covers mandated small group instruction for students that have this service designated on their IEP, are currently not taking place amidst virtual learning because of the inabilities of Zoom to account for this service in a room with only one teacher.

Legal Advocacy and Accountability for Services

Despite the US Department of Education’s initial legal guidance, as late as last month, they have begun to look into multiple school districts across the country that have failed to provide appropriate services to students with disabilities amidst COVID-19. Investigations have launched in school districts within Indiana, Washington, and California examining possible discrimination against students with disabilities by failing to abide by FAPE requirements amidst COVID-19. Even within New York, families have begun to use "stay put" rights to file successful lawsuits requiring that their childrens’ services must stay the same as pre-pandemic conditions and be in person when it is possible. While this is a step in mitigating the pandemic’s harmful effects on the disruption to services for children with disabilities, this is by no means a permanent solution. More permanent and productive action needs to be realized, especially because a return to previous conditions as we once knew them is unlikely.

Conclusion

I entered law school with an overall goal of using my legal degree to advocate for individuals like my students. I wanted to make a broader impact on the realm of education and disabilities rights. I think it is easy to come to Columbia and get swept away within the hustle and bustle of corporate law firms. I think that even more so, for individuals like myself, that come from diverse backgrounds and have made promises to ourselves to provide for our families, it becomes even easier to fall into the allure of the big corporate check. Yet, reflecting now on how my students’ situation has only become more heightened in need due to the pandemic’s unforeseen circumstances, it becomes apparent that I need to remain connected to the causes that motivated my actions to leave the classroom in the first place.

This is a clear and effective draft. You are trying to do three things in 1,000 words: (1) to summarize why, despite a clear and potentially effective statutory scheme for ensuring individualized and workable educational arrangements for disabled students, public education still routinely fails to achieve the goal of equal educational opportunity; (2) to describe how that failure has been and will be significantly aggravated by the larger failures throughout our systems of public education initiated by the COVID-19 epidemic; and (3) to speculate on how you can achieve your goal of practicing for the benefit of children whose legal entitlements to effective and equal public education are being denied, while also meeting the material needs that you and your family will expect your law license to procure. That's inevitably too much to achieve in a short essay, but you have come as close to it as possible, I believe. I don't see any way to improve it along those lines, so one approach is to declare it finished, and to move on to the second essay without more.

But what suffered in the careful balancing of space and attention was the third of your topics, which is actually the most important to the course of your legal education. You want to plan a practice around ADA educational equity issues that can positively affect the educations and thus the lives of students like those you taught, and can also be profitable enough to meet your material needs. You are well aware of the technical learning that you can do in law school to equip your license for that practice. The network you need to build to support that practice and make it profitable you can significantly begin constructing in the next two years, assuming that the epidemic is ending and that law school will resume performing the networking functions that have been pretty much down since March 2020. Because you understand the enormous effort, personal and monetary, that wealthy parents put into working the system on behalf of their own children, you know where the client base is that can help to make profitable a practice that must give a good deal of its work away, or invest heavily in long-term litigation that will not pay immediate returns to the lawyer investing her effort and time. So the one route to revision that might be valuable for you would be to produce a draft that takes the background presented here for granted, and that focuses specifically on firing up your imagination with respect to the possible architecture of your practice. You can't really plan that practice yet, although you are further along in that process than most people in the second term of law school, because you have come in with confident initial answers to some of the basic questions. Beginning to exercise your imagination in detail, is possible, and perhaps beneficial enough to justify a significant reworking of the essay, fine as it already is. That's for you to decide.

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